A defendant shall be punished by imprisonment for three years.

Provided, That the above punishment shall be imposed for a period of four years from the date this judgment becomes final and conclusive.

A. The court below found the Defendant guilty of committing the crime of murdering the victim E (hereinafter “victim E”), by misunderstanding the fact, although the Defendant did not have any intention to murder the victim E (hereinafter “victim E”).

B. The punishment sentenced by the lower court (four years of imprisonment) is unreasonable compared to the extent of the Defendant’s responsibility.

2. Determination

A. In the crime of murder determination as to the assertion of facts, the intent of murder does not necessarily require the intention of murder or planned murder. It is sufficient to recognize or anticipate the possibility or risk of the death of another person due to one’s own act, and its recognition or prediction is not definite, but it is so-called willful negligence even if it is uncertain. In a case where the defendant argues that there was only no criminal intent of murder or assault at the time of the crime, and that there was only the criminal intent of murder, the issue of whether the defendant was a criminal intent at the time of the crime should be determined by taking into account the objective circumstances before and after the crime, such as the background leading up to the crime, motive, type of the crime, method of attack, degree of repetition and repetition of the prepared deadly weapons, and possibility of the occurrence of death (see, e.g., Supreme Court Decision 2006Do734, Apr. 14, 206).

① 피고인이 피해자 E에게 찌르거나 휘두른 칼은 전체 길이가 약 30cm 정도이고 뾰족 한 모양으로 되어 있어 사람의 중요 부위를 찌르거나 벨 경우 충분히 사망의 결과를 발생시킬 수 있는 흉기이다.

(2) Although the defendant intends to write a knife three knife of the victim E, he/she shall avoid the victim E.